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Patur Subramania Sastri Vs. Vedam Subbalakshmamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1936Mad870; 166Ind.Cas.941; (1936)71MLJ385
AppellantPatur Subramania Sastri
RespondentVedam Subbalakshmamma and ors.
Cases ReferredHem Chandra Banerjee v. Annapurna Debi
Excerpt:
- - sub-section 1 of section 50, provides that where a judgment-debtor dies before the decree is fully satisfied, the decree-holder may apply to the court which passed it to execute the same against the legal representative of the deceased;.....proceeding till then. he protested that he could not be made a party and that the petitioner decree-holder had no right to execute the decree against him. the district munsif upheld his contention and dismissed the execution petition so far as he was concerned. on appeal however the subordinate judge differed from the district munsif and came to the conclusion that even a representative in interest who is not a legal representative can be proceeded against in execution and accordingly reversed the order of the district munsif and remanded the petition for fresh disposal.2. the only point raised in this appeal is whether this view of the subordinate judge is wrong. no doubt section 47, civil procedure code, directs that all questions arising between the parties to the suit or their.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the Subordinate Judge, Nellore, dated 4th August, 1931, reversing in appeal the order of the District Munsif of Gudur dated 5th February, 1929, in E.P. No. 1405 of 1928 an application to execute the decree in O.S. No. 630 of 1923 which inter alia created a charge on certain properties for the amount of maintenance due to and decreed in favour of the plaintiff in that suit. The appellant in this appeal was not a party to the decree. He is said to be a prior mortgagee of some of the properties on which a charge for maintenance has been given by the decree and he is said to have subsequently purchased the mortgaged properties outright. He was impleaded as judgment-debtor No. 5 in the execution application though he was not a party to the decree or to any execution proceeding till then. He protested that he could not be made a party and that the petitioner decree-holder had no right to execute the decree against him. The District Munsif upheld his contention and dismissed the execution petition so far as he was concerned. On appeal however the Subordinate Judge differed from the District Munsif and came to the conclusion that even a representative in interest who is not a legal representative can be proceeded against in execution and accordingly reversed the order of the District Munsif and remanded the petition for fresh disposal.

2. The only point raised in this appeal is whether this view of the Subordinate Judge is wrong. No doubt Section 47, Civil Procedure Code, directs that all questions arising between the parties to the suit or their representatives shall be determined by the Court executing the decree and the word ' representative ' is wider in its connotation than the words 'legal representative'. Section 47, however does not confer any right of proceeding in execution against persons who are not judgment-debtors themselves. The right of proceeding in execution against persons other than judgment-debtors is conferred by Section 50, Civil Procedure Code. Sub-Section 1 of Section 50, provides that where a judgment-debtor dies before the decree is fully satisfied, the decree-holder may apply to the Court which passed it to execute the same against the legal representative of the deceased; and Sub-Section 2 limits the extent of the liability of such legal representative. The appellant is certainly not a judgment-debtor nor is he the legal representative of any judgment-debtor. So much is conceded. No doubt by reason of his purchase of some of the properties over which the decree-holder was given a charge now belong to him as owner and he may be regarded as a representative in the wider sense of the term. That however does not entitle the decree-holder to make him a party judgment-debtor in the execution application. In any case there was no application beforehand to make him a party judgment-debtor in execution proceedings. It may be, as stated in Hem Chandra Banerjee v. Annapurna Debi 36 C.W.N. that the question whether Order 22, Rule 10, Civil Procedure Code, applies to execution proceedings is a matter of some doubt and it may be that the Court may have power, even apart from Order 22, Rule 10, to add a party for the purpose of execution. These questions need not be decided in the present appeal because there is no application to implead the appellant as a party to the execution proceedings. There is only an execution petition impleading him as a party, as if the decree-holder by a mere exercise of her own will, is entitled to make the appellant a party to the execution proceedings. There can be no doubt that the decree-holder is not entitled to do this and that the application to execute the decree so far as the appellant is concerned was incompetent. It follows from this that the appeal must succeed and that the order of the Subordinate Judge remanding the petition for fresh disposal must be set aside. The order of the District Munsif of 5th February, 1929, is restored. The appellant is entitled to have his costs in this Court and in the Court below from the decree-holder, first respondent.

3. Leave to appeal is refused.


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